Deliberative Democracy and the Institutions of Judicial Review

by Christopher F. Zurn

• ISBN13: 9780521119801
• ISBN10: 0521119804
• Edition: 1st
• Format: Paperback
• Copyright: 2009-09-17
• Publisher: Cambridge University Press

Summary

In this book, first published in 2007, Christopher F. Zurn shows why a normative theory of deliberative democratic constitutionalism yields the best understanding of the legitimacy of constitutional review. He further argues that this function should be institutionalized in a complex, multi-location structure including not only independent constitutional courts but also legislative and executive self-review that would enable interbranch constitutional dialogue and constitutional amendment through deliberative civic constitutional forums. Drawing on sustained critical analyses of diverse pluralist and deliberative democratic arguments concerning the legitimacy of judicial review, Zurn concludes that constitutional review is necessary to ensure the procedural requirements for legitimate democratic self-rule through deliberative cooperation. Claiming that pure normative theory is not sufficient to settle issues of institutional design, Zurn draws on empirical and comparative research to propose reformed institutions of constitutional review that encourage the development of fundamental law as an ongoing project of democratic deliberation and decision.

Table of Contents

Introduction:

An old chestnut is actually two

Pathologies of ad hoc triangulation

Functions and institutions

Majoritarian Democracy and Minoritarian Constitutionalism:

Judicial review as substantially legitimate protection of minority rights

Judicial review as procedurally legitimate protection of democracy

Moving beyond aggregative majoritarianism and minoritarian constitutionalism

From Majoritarian to Deliberative Theories of Constitutional Democracy:

Deliberative democracy: four axes of analysis

Constitutionalism: four central elements

Constitutional democracy?

Deliberative Democracy and Substantive Constitutionalism:

Keepers of the substantive flame of American exceptionalism

Guardians of the moral law in the forum of principle

Are substantialist defenses of judicial review self-defeating?

Disagreement and the Constitution of Democracy:

Democratic precommitment to judicial review: Freeman

Deliberative majoritarianism and the paternalism of judicial review: Waldron

Upshot: we need a theory of democratic constitutionalism

The Seducements of Juristic Discourse as Democratic Deliberation:

A division of labor between juristic deliberation and populist aggregation?

Actual juristic discourse in the United States system of constitutional adjudication

Legal principles and moral-political reasoning

Constitutionalism as the Procedural Structuring of Deliberative Democracy:

A provisional summary: criteria for an adequate theory of constitutional review

Guardians of the conditions of procedural legitimacy: Habermas

The Institutions of Constitutional Review I: Design Problems and Judicial Review:

The problems of designing institutions of constitutional review

Independent constitutional courts in a concentrated review system

The Institutions of Constitutional Review II: Horizontal Dispersal and Vertical Empowerment:

Self-review panels in the legislature and regulatory agencies

Mechanisms for inter-branch debate and decisional dispersal

Easing formal amendability requirements

Establishing civic constitutional fora

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